JUDICIAL INDESCRETIONSCONSERVATIVES PROPOSING NEW LAWS TO STEM FLOOD OF LAWSUITS BY INMATES

Before she became a jailhouse lawyer, Christina Jay Acker preyed on old ladies.
In 1990, Acker was sentenced to 36 years in prison for kidnaping and robbing a 78-year-old Phoenix woman. That same year, a Colorado judge sentenced Acker to life in prison for beating a 72-year-old Colorado woman to death.

Acker, an inmate at the state prison in Perryville, now says she could prove her innocence--if only prison officials allowed her access to the prison law library.

Actually, Christina Acker has already had a great deal of access to the law library.

In the past three years, Acker has filed 24 lawsuits--15 in Maricopa County Superior Court and nine in U.S. District Court in Phoenix. Her complaints are mostly repetitive. She keeps claiming that she's been unconstitutionally detained in prison, or that her constitutional rights have been violated by prison officials.

Acker admits that most of her lawsuits allege the same violations--just "under different time frames." If a case is dismissed, she says, she files another because the judges who've found against her have not addressed "the issues."

"After reviewing the file, the court is not sure what kind of cause of action is stated by the plaintiff," the judge wrote in a 1994 Acker case.

In that lawsuit, Acker claimed, among other things, that prison officials had denied her photocopying privileges--an allegation that was contradicted by Acker's own submission of numerous photocopies into the court record.

"Based upon what the court has observed in this file, [Acker] has abused the copying rules, whatever they may be," the judge concluded.

Hendrix instructed Acker to clarify her case or, the judge said, she would dismiss it. Acker voluntarily withdrew the suit.

Then she filed several more.
Acker's voluminous court pleadings are a "morass," says Rick Albrecht, the assistant attorney general in charge of a 15-person unit that defends state corrections officials against hundreds of prisoner lawsuits each year.

Defending prisoner lawsuits is frustrating, Albrecht says, "because all along, we know most of them are frivolous and aren't going to go anywhere."

So why don't judges rule promptly on prisoner cases that they find to be without merit?

The answer is, some do. Others don't. And don't and don't.
Information from numerous interviews with state and federal judges, combined with statistics from both court systems, shows a split: In general, no-nonsense elected state judges--even though burdened with heavier dockets--move prisoner cases along faster than federal judges, who are appointed for life.

As Acker puts it, she "prefers" the federal court to the Superior Court.
Acker has not paid court costs or filing fees in either court. Like most inmates, she claimed indigency and represented herself. "This has cost me nothing, absolutely nothing," Acker says.

The entire cost of Acker's litigation, including her photocopying expenses, has been paid with public funds.

"This is what I would say to Mr. John Public," says Acker: "He deserves paying for what I am doing."

Christina Acker is hardly the sole jailhouse lawyer in Arizona.
Arizona has the sixth-largest prison population per capita in the nation, the Bureau of Justice Statistics says. Arizona prisons now hold 20,756 inmates.

As the prisoner population climbs, so does the number of lawsuits prisoners file in state and federal courts. But not proportionately. In the last five years, Arizona's state inmate count has jumped by 45 percent. But in the Phoenix federal court alone, the number of prisoner filings has increased by 100 percent over that same time frame--from 654 to 1,303.

About one-half of the Phoenix federal court's entire civil docket is taken up by prisoner lawsuits, most of which are eventually dismissed as meritless. This makes Arizona among the top five in the nation for prisoner filings.

If the number of prisoner lawsuits continues to grow at its current pace, in five years, there will be two prisoner cases for every other civil case on the Phoenix federal court dockets.

This very real prisoner-lawsuit problem has given rise to a variety of proposed solutions, most coming from the conservative side of the political spectrum. Some proposals--including a few backed by Governor J. Fife Symington III--are primarily political in nature and would have little effect on the flood of prisoner lawsuits drowning the federal and, to a much lesser degree, the state court systems.

Other Republican proposals, however, provide disincentives to prisoners who file frivolous lawsuits. Several such proposals have been sponsored by Arizona Attorney General Grant Woods.

Woods has pushed for changes in state and federal legislation that would force prisoners to pay some of the legal costs for the lawsuits they file. If a prisoner has a choice between paying the fees to file a frivolous lawsuit or buying a pack of cigarettes at the prison commissary, Woods says, he will probably opt for the smokes.

No one knows for sure whether Woods' solutions--or the more severe proposals coming from the far right--will work.

None has been tested over time. It's simply too soon to tell.
But Woods has reason to know prisoner lawsuits, and how the system works--and fails to work--now.

Most of the lawsuits filed by state prisoners name the Arizona Department of Corrections as a defendant. The Arizona Attorney General's Office must provide the defense. The cost of representing the DOC in these suits: about $1.25 million annually.

The federal court has attempted to deal with the deluge of prisoner lawsuits through a "pro se" office, so named because most prisoners file suit pro se--that is, without the assistance of an attorney. That office sets taxpayers back $348,000 per year in staff salaries alone. The pro se office flags frivolous prisoner lawsuits and recommends that judges dismiss them immediately. But this screening only weeds out about 25 percent of incoming prisoner filings.

The reason: pro se law clerks can only suggest judges dismiss cases that fit the Supreme Court's definition of "frivolous," which is "lacking an arguable basis in law or facts," says James McKay, the lead pro se law clerk in Phoenix.

This means that inmate D. Wayne Farmer's 1992 lawsuit alleging, among other things, prisoners were intentionally served spoiled food by guards, including less-than-fresh fried eggs in egg-salad sandwiches, is not legally frivolous. It is, instead, arguable. It took nearly a year before Judge Roger Strand dismissed the case, noting that an "isolated incident of spoiled food . . . does not rise to the level of a constitutional violation."

Saddled with the sixth heaviest caseload in the 94 federal judicial districts, the eight federal judges in Phoenix are among the busiest in the United States. Saying that they are compelled to adjudicate criminal cases first, judges sometimes put civil cases, especially tedious prisoner cases, on the back burner, creating a backlog.

The attorneys who defend prisoner cases are restrained when asked whether federal judges are not, in fact, a significant part of the prisoner-lawsuit problem. Those attorneys usually speak carefully. They must, after all, continue to appear before federal judges.

"Nobody likes to go to work in the morning hoping he can handle a completely idiotic case," Woods says in explaining why judges don't like to deal with prisoner lawsuits. Even Woods, however, says some prisoner cases just "sit and sit and sit," that attorneys have to "really work on judges to move things along."

"Prisoner civil rights cases are at the bottom of the legal food chain," assistant attorney general Rob Carey says. "Federal judges are supposedly the best of the best. The best trained, the brightest, the most experienced, the most educated. They want to spend their time on things that matter to them."

"Things move very slowly in federal court," says Dale Robinson, a lawyer who defends prisoner actions, including a case in which a prisoner sued Mesa police for providing him with his prescription heart medicine shortly after his arrest. It took six years before the case was settled out of court.

"Cases will just sit sometimes. We wait and wait for the federal court to rule," says Robinson. "It's very frustrating."

"We are a very busy court," responds Robert Broomfield, chief justice of the Arizona District. "We are constantly searching for ways to better and more fairly process all cases."

When asked whether the numbers of prisoner filings are a problem for the federal courts, Broomfield answers: "I don't want to say anything is a problem, in the sense that we're here to do the business of the people. And if people file lawsuits, we're here to resolve those lawsuits."

Federal judges say some prisoner lawsuits move slowly because the judges are obligated to follow Supreme Court instructions to "liberally construe" the pleadings of pro se litigants. The Ninth Circuit Court of Appeals, which oversees the Arizona District, also instructs judges to tell prisoners about flawed court pleadings. Only when a prisoner fails to fix such a technical defect can a judge dismiss the inmate's case.

Superior Court judges do not take prisoner lawsuits as seriously. Which is one reason prisoners mostly file in federal, not state, court.

"In most instances, prisoners were playing games with the guards. The lawsuits gave them something to do. Also, they wanted to get out of prison, and going to court got them out of prison," former Superior Court judge Stanley Goodfarb says. "Most judges dislike prisoner lawsuits. They are a lot of work. The prisoners send every document they can, and it's difficult to handle because prisoners aren't lawyers. You get tons of paper that fill the file, most of which is unnecessary.

"As far as I was concerned as a civil judge, these lawsuits were more of a nuisance than a problem."

Maricopa County judges are far busier than federal judges, with twice the caseload. They don't like their courtrooms cluttered with meritless cases.

In dismissing a case in which several of the 5,000 inmates in the Maricopa County jails claimed Sheriff Joe Arpaio was depriving them of constitutional rights--their morning coffee--Judge Frank Galati noted that lawsuits cost inmates nothing, but cost the taxpayer plenty. He wrote: "Dismissal of this frivolous lawsuit at this early stage and on the court's own motion serves the interests of justice, an overburdened system and an overburdened taxpaying public."

Some federal judges seem all but oblivious to the latter two interests.

In 1982, Kenneth Ashelman, an inmate at the Mohave County Jail in Kingman, sued his jailers for $1.7 million, claiming his constitutional rights had been violated because, among other things, he had been deprived of proper clothing and bedding, access to the courts, freedom of speech and freedom of religion.

Later, Ashelman amended the case to include another alleged constitutional violation: He'd been deprived of three kosher meals a day while in jail.

The 13-year-old lawsuit is still pending at U.S. District Court in Phoenix.

From the beginning, inmate Ashelman bombarded the court with stacks of pleadings. In 1983, a magistrate assigned to the case wrote, "It has been difficult to ascertain from the voluminous documents filed by the plaintiff exactly what his claims are."

Two years after the case was filed, Judge Carl Muecke blasted Ashelman for filing "repetitive and conclusory" motions. But then the judge also lambasted Mohave County for not answering those motions.

By then, Ashelman had been sentenced to 28 years for kidnaping and sexually assaulting a Tucson real estate agent at knifepoint. After spending several months in the Kingman jail, Ashelman was transferred to the state prison in Florence.

From his new home, Ashelman continued filing court pleadings, all of which had to be answered by the Mohave County Attorney's Office.

In 1985, the three-year-old Ashelman case was reassigned to Judge Roger Strand.

Judge Strand denied Ashelman's motion for summary judgment, but he appointed two different lawyers to help the prisoner with his case. Each lawyer quit the case, citing differences of opinion with Ashelman.

The inmate continued filing his pleadings.
In late 1994, the 12-year-old case was reassigned to a third federal judge, the newly appointed Roslyn Silver. As the judge with the least seniority on Arizona's federal bench, Silver was assigned many prisoner lawsuits that had dragged on for years on other judges' dockets.

Court records show that Silver is tackling the backlog of uninteresting cases she inherited, moving them along.

She scooped up the Ashelman case, and promptly dismissed part of it on technical grounds, at the request of Mohave County.

But several issues in this ancient case have to be resolved in an as-yet-unscheduled upcoming trial.

Among those burning issues: whether Kenneth Ashelman was deprived of his constitutional rights 13 years ago because he was provided inadequate bedding, and because he was not served three kosher meals a day by the administrators of the Mohave County Jail.

The Ashelman case is one of dozens of prisoner cases that have been languishing for more than three years in Phoenix federal courts. And actually, Judge Strand appears to be fairly efficient at moving such cases, at least in comparison to other Arizona federal judges.

His docket carries six inmate lawsuits that are three years old--or older.

Troubled by backlogs in federal court, Congress in 1990 passed the Civil Justice Reform Act. The law permitted "advisory groups" of local lawyers, citizens and academics to have some say in how the federal courts are managed.

The advisory group for the Arizona District was headed by Phoenix lawyer Richard Segal. In 1993, Segal's group persuaded the Arizona District to try a new system for handling civil cases--Differentiated Case Management, or DCM.

The system, which started in December 1993, works this way: When civil lawsuits are filed, they are put on different time tracks. Prisoner cases are on an "expedited" track that is expected to move the cases efficiently but rapidly through the courts. More complicated cases are put on slower tracks.

So far, the eight judges in the Phoenix court are cooperating with the new system. But if they choose not to cooperate, Segal admits, "There is very little you can do about it." The system is voluntary.

Segal says federal court administrators in Washington, D.C., have concluded it's too soon to determine if the new system works in Arizona.

But it seems to be helping.
Although DCM cannot effect the backlog of prisoner cases, newly filed cases seem to be moving through the federal court more rapidly. Of the 1,303 prisoner filings in 1994, roughly half were dismissed by judges in less than a year.

It is clear, though, that DCM is not a final solution to the prisoner-lawsuit problem.

Six years ago, Larry Howard, an inmate at the state prison in Florence, sued state corrections director Sam Lewis and 32 prison officials in federal court in Phoenix. Howard claimed numerous living conditions in Florence violated his constitutional rights. He noted, among other things, that "just recently, several plaintiffs found human feces in there [sic] food, and when complaints were made, above mentioned defendants found nothing."

The case was assigned to Judge Roger Strand.
In September 1990, Howard filed a motion, asking the judge to decide the suit in his favor.

A week later, the state filed papers opposing Howard's motion and asked the judge to sanction Howard, because he had violated the judge's instructions on pursuing the case.

Two weeks later, Howard responded to the state's request for sanctions.
Four and one-half years later, Judge Strand has not ruled on the motions. That is because the Howard case has been combined with a 1988 lawsuit filed by prisoner Robert Enger, who said his constitutional rights were violated by unsanitary conditions at the Florence prison.

In that suit, Enger notes that "the whole outside of the cellblock is smitten with an overpopulation of pigeons leaving their droppings to pile up."

The seven-year-old Enger case is still in an early phase of litigation known as discovery.

(Strand agreed that the suit is "certainly a very old case." It has been delayed because the prisoners have no lawyer and are having difficulty developing evidence for their many allegations, the judge said.)

MDNM Five years ago, Daniel Mitchell sued state prison officials, claiming the guards used excessive force when pushing him out of his cell. The guards claimed Mitchell threw a "liquid substance believed to be urine" at them. Mitchell countered that the liquid was drinking water.

The case has yet to be ruled on by Judge Earl Carroll.
The Mitchell and Howard cases are typical prisoner lawsuits. But allegations of human feces in food and urine in water cups are simply not the sorts of topics federal judges like to deal with.

Woods, whose office must defend the bulk of such suits, has come up with what appear to be creative and fair proposals for stemming the flood of prisoner lawsuits inundating Arizona courts.

The way Woods sees it, prisoners should gripe first in prison, then in the courts. And when they do get to the courts, they should be made to pay court costs, just like everyone else. Woods' idea is not to prevent access to the courts, but to reduce the number of frivolous and malicious suits.

Last year, Woods' office received federal court approval for a state prison grievance system. Before filing a federal lawsuit, a prison inmate must first air his or her grievance in an administrative hearing before prison officials. If the prisoner objects to the way the grievance was settled, he can take his complaint to court.

Prisoner advocates say the grievance system will not cut down on lawsuits because inmates have no confidence in prison officials who administer the grievances.

It's too early to tell if the grievance procedures will reduce frivolous court filings. Albrecht, the assistant attorney general in charge of prisoner litigation, says fully evaluating the new system will take five years.

But the AG's Office claims immediate success with another recent reform: a new state law that forces prisoners who file lawsuits in state courts to pay filing fees. If a prisoner has no money in his prison account, he can still file a lawsuit. But the court can garnish the prisoner's account, so the state gets its money whenever any shows up in the account. (The state court filing fee is $97.25 per case.)

What's more, if a state judge finds a prisoner's lawsuit to be frivolous, the inmate could lose "good-time credits," lengthening his stay in prison.

The law, drafted by the AG's Office and sponsored by Senator Patricia Nolan, was passed last year. Albrecht and Woods say it has reduced state prisoner filings by one-half. But the state law is still an experiment, and it does not apply to federal court, where most prisoner lawsuits are filed.

Woods and U.S. Senator Jon Kyl said last week they'll push similar federal legislation, co-sponsored by Kyl and Republican Senate leader and presidential front-runner Bob Dole.

"If you want to call this politicking, that's fine," says Rob Carey, an assistant attorney general. "But we call it solving a very serious problem."

Of all the judges in the Phoenix federal court, Muecke has one of the lowest numbers of pending prisoner cases filed before 1992. There are only six such cases on Muecke's docket.

Two of these prisoner lawsuits are more than 20 years old. They are not frivolous, although they've been painted as frivolous by legislators, the governor and prison officials.

They are the Casey and Hook cases, in which Muecke ruled that state prisoners should have proper mail privileges, mental-health care and access to law libraries.

Muecke's rulings have enraged state corrections director Sam Lewis, the governor and many legislators, all of whom see the judge as siding with prisoners, meddling in the state's business and trying to micromanage the prison system.

Recent public clashes between Muecke and the state have centered on sex magazines and Christmas packages, both of which fall under the domain of the Hook case.

Last year, Muecke refused to let Lewis reduce the allowable weight of inmate Christmas packages from 75 pounds to 25 pounds, because the weight had been determined in an earlier Hook court agreement--an agreement that the state had signed. In a different fight, Muecke cited Lewis for contempt because the director banned sex magazines from the prison, in violation of the same court agreement.

But the Muecke-Lewis fight is not about sex magazines and Christmas tonnage. It is over who has more power--state officials or the federal judiciary.

Conservative state legislators were so enraged by Muecke's rulings that they threatened last session to cut off funds to the Arizona State University Law School legal clinic. The clinic had assisted prisoners in connection with the Casey case at Muecke's request. The law clinic's director, Gary Lowenthal, refused comment, saying he did not want to "stir up" the legislature.

What irritates the legislature most is that Muecke has cost the state money--about $3 million so far--while forcing it to comply with his rulings. Muecke has appointed "special masters" to monitor the state's prisons and make sure his rulings are being carried out by Lewis, the corrections director.

Now, in response, the legislature has attempted to put a clamp on all prisoner lawsuits, including those that have merit, such as the Casey and Hook cases.

Last month, for example, the legislature passed a law prohibiting the payment of "special masters" with state funds.

Legal experts say the law will almost certainly be found to be an unconstitutional incursion on the powers of the federal judiciary. And virtually all serious observers say it will do nothing to solve the real problem--vast numbers of frivolous prisoner lawsuits.

Christina Acker is undeterred by the efforts of the governor, attorney general, the legislature, the Congress. "These rather naive people think they can squash this, but they can't," she says.

So far, Acker's gotten notices to pay filing fees for six lawsuits she has pursued recently in state court. In each case, the court ordered that 20 percent of the funds in her prison account be immediately garnished.

But Christina Acker says she has no money in her prison account.
"Twenty percent of nothing is still nothing," she notes.
Christina Acker has other things on her mind, anyway. She plans on suing a judge soon, she says during a phone interview. So please excuse. Christina Acker has to get back to the law library.

"I have absolutely nothing to lose," she says.
"There is nothing that can stop me.